Constitutional Origins, Structure, and Change in Federal Democracies

Transcription

1 THEME 1 TEMPLATE Constitutional Origins, Structure, and Change in Federal Democracies Preface The book will provide a complete, accurate, objective, and balanced description and analysis of each country s federal constitution suitable as a practical resource for practitioners as well as teaching and research tool for scholars. Each double-spaced chapter (including references and any tables) is to reflect, as best as possible, consensus views on the country s federal constitution as well as conflicting views in the absence of consensus. The chapters will not be platforms for authors political or ideological views and/or particular constitutional reform proposals. Instead, each chapter is to be developed by the Country Coordinator as a collaborative effort with other academic and non-academic experts in his or her country. The Country Workshops, especially, are intended to allow authors to develop a consensus-oriented description and analysis of his or her country s constitution by soliciting the views and ideas of practitioners and other scholars and by receiving supportive and critical comments from them. Likewise, the following draft template, including terminology (e.g., intergovernmental relations ), is to be revised as the Theme Coordinator and Country Coordinators interact during the months needed to start this project. Once the template is made final, each Country Coordinator will write his or her chapter in conformity to the template so as to provide maximum comparability across all eleven country chapters. Each chapter also will be informed by the following general questions, which each author will address at the appropriate places in his or her chapter. - Why was the country s federal constitution constructed the way it is, and what were the principal philosophical, historical, or political reasons for doing so? - What, if anything, is unique or different about the country s federal constitution compared to other federal constitutions around the world? - What, essentially, is the role or function of the constitution in the country s federal system? - How successful is the constitution in terms of (1) longevity and durability, (2) adherence of governments and politicians to its provisions, (3) political and social stability, (4) support for the constitution by the people, (5) democracy, (6) individual and/or communal rights and liberties, (7) economic performance, and (8) potential for positive future development? - What are the major reasons for the success, partial success, or failure of the federal constitution or constitutionalism in the country? - Is the federal constitution generally compatible or incompatible with the country s

2 2 society and political culture, and is the federal constitution supported by an underlying federal society or political culture in the country? - How has the constitution evolved over time, and why? - Where is the country s constitutional debate going, and what are the likely future trends for the country s federal constitution? I. The Federal Constitution in Historical-Cultural Context A. Creation of the federation 1. Briefly, what are the basic characteristics of the country today: (a) population size, (b) land area, (3) predominant language or languages, (4) predominant ethnic/ nationality group or groups, (5) predominant religious group or groups, and per capita GDP in U.S. dollars? 2. How and when was the current federal constitution drafted and approved for implementation, and who or what body approved it? a. How long is the constitution (i.e., how many words) without amendments and with amendments? 3. Is the constitution really a constitution, or is it more of a collection of bilateral and multilateral treaties, special legislation, or constitutional statutes? 4. Does the federal constitution embody or reflect a civil-law tradition, a common-law tradition, a combination, or something different? 5. Does the federal constitution embody or reflect any traditional or religious law traditions (e.g., Roman Catholic canon law, Islamic Sharia law)? 6. Was the federation created by the integration of previously independent or established political communities, or by the creation of constituent governments by a previously unitary state? 7. Since the creation of the federation, have additional constituent polities been added to the federation or carved out of existing polities? 8. If so, what is the procedure for admitting or adding constituent polities and/or for reorganizing constituent polities to increase or decrease the number of constituent polities? a. Have any constituent polities been created by secession from, or division of, existing constituent polities (e.g., secession of West Virginia from Virginia in the USA)? b. If yes, is there a constitutional or statutory provision for secession within the federation? 9. Has any constituent polity ever been expelled from the federation? 10. Has there ever been a civil war or wars in the federation; if so, what were the major causes and outcomes? B. Creation of the federal constitution 1. What principal aims or objectives did the drafters of the federal Constitution hope to achieve with regard to federalism and democracy through this constitution (e.g., peace and security, common-market prosperity, liberty, cultural/linguistic/religious

3 3 accommodation, and/or national unity)? 2. Does the constitution emphasize individualism and individual rights, or does it emphasize communalism and communal rights? a. Is the constitution a more of covenant among individuals or more of a compact between peoples? 3. Does the constitution mandate an official language or languages? 4. Does the constitution mandate an official religion or religions or otherwise give special status or privileges to any religion? 5. Does the constitution explicitly or implicitly require or proclaim a principle such as Bundestreue (i.e., federal loyalty)? 6. Were the drafters of the federal constitution significantly influenced by a particular political theory, by a particular religious orientation, by a particular ideological orientation, and/or by the federal constitution of one or more other countries? 7. Were the drafters of the constitution significantly influenced by external powers (e.g., colonial power, occupying military power, or super-power seeking influence)? 8. Was the constitution essentially the product of elites, or did it have broad-based citizen participation or support? 9. Is the current federal/national constitution the first constitution or first federal constitution for the country? If not, what factors led to the replacement of the preceding constitution(s)? 10. How does the current constitution attempt to deal with the problems relating to federalism and/or democracy that were encountered under the preceding constitution(s)? 11. What major political compromises, if any, were needed in order to bring the constitution into existence? 12. What other country-specific factors are important for understanding the constitutional-design choices made by the framers of the current constitution? II. Constitutional Principles of the Federation A. Is the federal constitution generally oriented toward: 1. Dual federalism, 2. Cooperative federalism, 3. Union-dominated or regulatory federalism, 4. Collusive federalism, 5. Competitive federalism, or 6. Some combination of the above? B. Does the federal constitution generally establish a centralized, decentralized, or noncentralized federal system? C. Generally, what is the balance between unity and diversity in the federal constitution? D. Status of the constituent political communities

4 4 1. Do the constituent polities each have the same powers (symmetrical federalism), or do powers differ among the various constituent polities (asymmetrical federalism)? a. Why did the constitution s framers choose symmetry or asymmetry? b. Was the choice a matter of principle or a product of necessity or practical politics? 2. What guarantees, if any, does the constitution provide for the continued existence and territorial integrity of the constituent polities? 3. Do the constituent polities have a constitutional right of secession from the federation? a. If yes, what procedure does the constitution provide for secession? b. If not, has any institution or institutions of the federal government otherwise provided for secession from the federation? 4. To what extent are the constituent polities constitutionally free to create their own government and political institutions and processes of government? 5. Whether or not they are constitutionally free to create all of their own institutions of government, are there any constitutional limits on their freedom to operate those institutions? 6. How are the limits on that freedom enforced constitutionally? 7. Do the constituent polities have their own constitutions? a. If yes, how are the constitutions created and approved, and by whom? b. How, and by whom, are the constitutions of the constituent polities amended? c. If the constituent polities have their own constitutions, are these constitutions coequal to, or subservient to, the federal constitution? d. In cases or situations of conflict between the federal constitution and the constitutions of the constituent polities, which constitution prevails? e. Who, or which institution, is the ultimate interpreter of the constitutions of the constituent polities? 8. What limits, if any, does the federal constitution impose on the ability of the constituent polities to design their own political arrangements? a. Are all or some of the government officials of the constituent polities elected by the people who live in those polities, and/or are all or some government officials (whether regional or local) of the constituent polities appointed by the federal government? c. What mechanisms are employed to enforce any limits imposed on the ability of the constituent polities to design their own constitutions or political institutions and processes of government? 9. Whether or not the constituent polities are constitutionally free to create all of their own institutions and processes of government, are there any constitutional limits on their freedom to operate those institutions and processes? a. If yes, how are the limits on that freedom enforced constitutionally? 10. Does the federal constitution also explicitly recognize or provide for local government as a third order of government?

5 5 a. If yes, what provisions are made for local government in the federal constitution, and why? b. If no, are the creation and supervision of local government powers reserved to or delegated to the constituent polities (e.g., provinces, cantons, Länder, states, or republics)? c. Does the federal/national constitution provide for any city-states? 11. Generally, how much autonomy do local governments have in the areas of (1) taxing and spending, (2) functional powers or competences, (3) hiring and firing their own personnel, and (4) local public administration? 12. Does the federal constitution also explicitly recognize, or provide for, local selfgovernment or semi-nationhood for indigenous peoples as a third order of government or some other semi-sovereign entity? a. If yes, what provisions are made for indigenous-peoples local self-government in the federal constitution, and why? b. If no, is the creation and supervision of indigenous-peoples local self-government a power reserved to or delegated to the constituent polities (e.g., cantons, Länder, provinces, republics, or states)? 13. Does the federal constitution authorize the federal executive, legislature, or judiciary to take over the government of a constituent polity, local community, or indigenous community under certain conditions and circumstances (e.g., President s rule in India)? E. The allocation of powers--general 1. Does the federal constitution enumerate the powers of the federal government, the powers of the constituent polities, or both? 2. Does the federal constitution explicitly or implicitly recognize residual powers; if yes, do residual powers rest with the federal government, with the constituent governments or peoples, or with both the federal government and the constituent polities? 3. What powers are granted to the federal and/or the constituent governments? If the lists are too long, please categorize and prioritize them (e.g., economic powers, foreign affairs and defense powers, domestic police powers, etc.) and give key examples. 4. How are police powers allocated in the federal constitution? Do the constituent polities and/or local governments, for instance, have their own independent police powers and personnel? 5. Are the powers granted by the constitution primarily exclusive to one or another order of government, are they mostly concurrent, or are they a combination of both? a. Does the federal constitution contain an explicit list of concurrent powers? b. If yes, briefly categorize and prioritize them (e.g., economic powers, foreign affairs and defense powers, domestic police powers, etc.) and give key examples. 6. Insofar as the constitution establishes concurrent powers, in cases of conflict, is the federal law or the law of the constituent polities supreme? Does it vary, depending on the issue? 7. What is the constitutional basis for this supremacy? a. How is this supremacy enforced in practice?

6 6 8. Does the federal constitution place any specific limits or restrictions on: a. the federal government, b. the constituent governments, and/or c. local governments? 9. What, if any, explicit intergovernmental institutions (e.g., a grants commission) are established by the federal constitution? 10. Are there explicit or perhaps implicit constitutional mechanisms designed to promote consensual rather than hierarchical resolution of conflicts between the federal government and constituent governments? F. Competency and jurisdictional conflicts between the federal government and the constituent polities 1. What mechanisms does the constitution employ to forestall the development of competency conflicts between the federal government and the constituent polities? a. How successful have those mechanisms been? 2. Are competency conflicts between the federal government and the constituent governments frequent or infrequent, severe or mild? 3. What institution(s) resolve competency conflicts between the federal government and the constituent polities? How are those conflicts brought before those institution(s)? III. Federalism and the Structure and Operation of Government A. Are the federal and/or constituent governments parliamentary, presidential, a combination, or yet another system different from these? 1. What factors explain why a parliamentary, presidential, or combination was chosen, or else something quite different was chosen? B. Is the separation of powers (i.e., legislative, executive, or judicial) a prominent or important principle of the federal/national constitution? 1. Are there checks and balances between the executive, legislative, and judicial branches of government? 2. If yes, briefly describe them and give examples. C. Federal legislature 1. What are the constitutional powers (or competences) of the federal legislature? 2. Is the national legislature unicameral or bicameral? 3. How are the constituent polities represented, if at all, in the national legislature? 4. If the constituent polities are represented in one house (Senate?) of the national legislature, what powers does that chamber exercise? a. Does this chamber have any exclusive or special powers? 6. What has been the effect of representing the constituent polities in the national legislature on the maintenance of constitutional federalism? 7. Has this effect changed over time by constitutional amendment, judicial interpretation, and/or political tradition? 8. Does the federal legislature have a concurrent approval, veto, or amendment power

7 7 over legislation enacted by the federation s constituent governments, local governments, and/or indigenous governments? 9. Do the constituent governments, individually or collectively, have a concurrent approval, veto, or amendment power over legislation enacted by the federal government? D. Federal executive 1. What are the constitutional powers, structure, and nature of the federal executive? 2. How are the constituent polities constitutionally represented, if at all, in the federal/national executive? 3. What has been the effect of representing the constituent polities in the federal/national on the maintenance of constitutional federalism? 4. Whether or not the constituent polities are represented in the national executive, what constitutional role, if any, do they play in the selection or election of the national executive? E. Federal judiciary 1. What are the constitutional powers and/or jurisdiction of the federal/national judiciary? 2. What are the constitution s provisions for selecting the members of the federal/national judiciary? 3. What court is established by the federal constitution as the federation s highest court? a. What are the powers and jurisdiction of this court or courts? b. Is the highest court a court of appeals and/or a court of original jurisdiction? c. Can the highest court and/or other federal/national courts declare a federal law to be unconstitutional and, therefore, null and void? d. Can the highest court and/or other federal/national courts declare a cantonal/ Land/provincial/state law to be unconstitutional and, therefore, null and void? e. Can the highest court and/or other federal/national courts hear reference cases and/or issue advisory opinions to the federal executive and/or federal legislature and/or to the governments of the constituent polities? 4. How are the constituent polities represented, if at all, in the national judiciary? a. If yes, what has been the effect of representing the constituent polities in the federal/national judiciary on the maintenance of constitutional federalism? 5. Does the federal constitution require or allow the federal/national government and/or the constituent governments to empower or recognize traditional, communal, or religious courts? a. If yes, what are the powers and jurisdictions of traditional, communal, or religious courts? b. Can individuals choose, for all or certain cases, between regular civil, secular courts and traditional, communal, or religious courts? c. Can individuals appeal judgments or decisions of traditional, communal, or religious courts over to regular civil, secular courts? F. Institutions of the constituent polities

8 8 1. Do the institutional arrangements in the constituent polities resemble those in the federal/national government? 2. Insofar as they are similar, what accounts for that? 3. Insofar as they are dissimilar, what accounts for that? 4. What are the most common institutional arrangements (e.g., executive, legislative, judicial) of the constituent polities? 5. Do the constituent polities have their own independent courts? a. If yes, what are their sources authority, what are their powers and jurisdiction, and what are their principal relations with the federal/national courts? G. Does the federal constitution provide for any types of relations among the constituent polities, such as: 1. Full faith and credit or mutual recognition of each other s legal acts, 2. Non-discrimination against migrants from other constituent polities within the federation, 3. Rights of mobility for labor, capital, goods, and services, and/or 4. Extradition of criminals who flee from one constituent polity to another within the federation? 5. If a resident of constituent polity A sues a resident of constituent polity B, in what court is the case heard? 6. If a resident of constituent polity A robs or kills a resident of constituent polity B, in what court is the criminal tried? 7. If a person commits a crime in constituent polity A but flees to constituent polity B, which constituent polity has jurisdiction if the criminal is captured in constituent polity B. Is the criminal returned (extradited) to constituent polity A for trial? 8. Does the constitution establish any formal mechanisms (e.g., an inter-state council) for relations among the constituent polities or otherwise mandate any meetings or consultations among them? 9. Does the federal constitution allow constituent polities to enter compacts or agreements among themselves, with or without federal government approval? 10. Does the constitution establish any formal mechanisms for relations between the federal government and the constituent polities or otherwise mandate any meetings or consultations between them (e.g., premiers conferences)? IV. Fiscal and Monetary Powers A. Taxation 1. Do both the federal government and the governments of the constituent polities have independent taxing authority? 2. If so, what is the division of taxing authority between the federal government and the governments of the constituent polities? 3. Are any tax sources given exclusively to the a. Federal government and/or b. Constituent governments? 4. Does the federal constitution give the federal government, constituent governments,

9 9 local governments, and/or indigenous governments ownership of, and/or tax authority over, natural resources located (1) within the federation s land borders and/or (2) offshore from the federation? a. Does the federal constitution require the government that has ownership of and/or tax authority over natural resources to share natural-resource revenues with any other government or governments? 5. What limits, if any, does the constitution place on the taxing authority of the federal government? 6. What limits, if any, does the constitution place on the taxing authority of the governments of the constituent polities? 7. Does the constitution specify that some or all federal taxes be collected for the federal government by the constituent governments? a. If yes, how does the federal government ensure that it receives all of the tax revenue collected for it by the constituent polities? 8. Does the constitution specify that some or all constituent-government taxes be collected for the constituent governments by the federal government? a. If yes, how do the constituent governments ensure that they receive all of the tax revenue collected for them by the federal government? 9. Does the constitution include any provisions on tax harmonization, coordination, cooperation, or competition among constituent polities and/or local governments? 10. If a person lives in constituent polity A but works in constituent polity B, to which constituent polity or polities does the person pay regional and/or local taxes? B. Borrowing 1. Do both the federal government and the governments of the constituent polities have independent borrowing authority? 2. If so, what is the division of borrowing authority between the federal government and the governments of the constituent polities? 3. What limits, if any, does the constitution place on the borrowing authority of the federal government? a. Is the federal government permitted to engage in deficit spending, or is it constitutionally required to have a balanced budget every fiscal year? 4. What limits, if any, does the constitution place on the borrowing authority of the governments of the constituent polities? a. Are the constituent governments permitted to engage in deficit spending, or are they constitutionally required to have a balanced budget every fiscal year? 5. Does the federal constitution require or encourage the federal government to pay the debts of constituent polities and/or local governments when those governments fail or refuse to pay their debts? C. Allocation of revenues 1. Does the constitution require the federal government to distribute or share federal tax revenues with the constituent polities of the federation? 2. If so, does the constitution prescribe how tax funds collected by the federal government must be distributed to the constituent polities? 3. What principles guide the constitutional allocation prescriptions, and what are the

10 10 constitutional purposes of the distribution? a. Does the federal constitution explicitly mandate uniform or equal living conditions or public services across all of the federation s constituent polities? b. Does the federal constitution mandate fiscal equalization? If yes, then why and how? 4. Does the federal constitution require some or all of the constituent governments to distribute or share revenue with the federal government and/or other constituent governments in the federation for equalization purposes? If yes, then why and how? 5. Have the constitutional prescriptions regarding the distribution of tax revenues changed over time? If so, why and in what way? D. Spending of revenues 1. Does the constitution place any limits on the power of the federal government to spend revenues for any or various purposes of its own choice? 2. Does the constitution place any limits on the power of the constituent governments to spend own-source and/or grants-in-aid revenues for various purposes of their own choice? 3. Does the constitution limit the authority of the constituent governments or local governments to spend revenues transferred to them by the federal government, or otherwise direct how or where such funds are spent, or are these matters left up to the federal and/or constituent legislative process? E. Does the federal constitution assign monetary policy exclusively or only partly to the federal/national government? a. Does the federal constitution establish a central bank? V. Foreign Affairs and Defense Powers A. What powers does the federal government possess in the realm of foreign affairs and defense? B. What powers do the constituent polities possess in the realm of foreign affairs and defense? C. What constitutional limits exist on the foreign-affairs and/or defense powers of the constituent polities? D. Are the military powers exclusively federal, or do the constituent polities possess their own militias, armies, navies, coast guards, and/or air forces? 1. If yes, what are the constitutional relations between the federal and constituentgovernment military forces? 2. Do the federal constitution and/or the constituent constitutions explicitly provide for civilian control of all military forces? 3. Do the federal constitution and/or the constituent constitutions explicitly provide for religious and/or secular conscientious objection to military service?

11 11 E. Does the federal constitution provide for intergovernmental consultation in foreign affairs and/or defense, representation of constituent governments in external negotiations, or external relations authority (e.g., a limited treaty power) for the federation s constituent polities and/or local governments? F. Has the development of supra-national institutions (e.g., the European Union and NAFTA) affected the constitutional allocation of foreign affairs and/or defense powers, or otherwise compelled constitutional change to provide for more intergovernmental consultation in foreign affairs and/or defense, representation of constituent governments in external negotiations, or greater external relations authority (e.g., a limited treaty power) for the federation s constituent polities and/or local governments? G. Does the federal constitution contain any provisions that govern: 1. Membership or participation in international organizations by the federal/national government or 2. Membership or participation in international organizations by the constituent polities and/or local governments? VI. Citizenship A. Does the federal/national constitution define citizenship or include any other provisions on citizenship in (1) the federation and/or (2) the constituent polities? B. Is citizenship determined by the federal/national government, by the constituent polities, or by both orders of government? C. Does the federal constitution recognize or authorize dual citizenship (i.e., national and constituent-polity citizenship, such as dual federal and state citizenship in the United States)? D. Is citizenship in the federation based on the principle or jus soli or on the principle of jus sanguinis? 1. If there is citizenship in the constituent polities, is that citizenship based on jus soli, jus sanguinis, residence in the constituent polity for a certain period of time, or something else? E. If an immigrant wishes to obtain citizenship in the federation, does the immigrant apply to the federal government and/or a constituent government? Which order of government grants the citizenship? VII. Voting, Elections, and Political Parties A. Does the federal constitution define the suffrage and make other provisions for voter qualification and elections? B. Which government or governments has full or principal responsibility for registering and

12 12 monitoring voters for national, constituent, local, and/or indigenous elections? C. Which government or governments has full or principal responsibility for conducting and administering national, constituent, local, and/or indigenous elections? D. Describe briefly the provisions in the federal constitution for voting and elections (national, constituent, local, and indigenous). E. How broad is the suffrage, that is, what is the voting age, and is anyone excluded from voting because of gender, race, ethnicity, nationality, religion, mental ability, or conviction for a felony crime or misdemeanor? F. Does the federal constitution allow any resident aliens/foreigners to vote in any elections? G. Does the federal constitution include any provisions for or against political parties generally or particular political parties? If yes, describe those provisions briefly. VIII. Protection of Individual and Communal Rights A. Federal guarantees of rights 1. Does the federal constitution include a bill or declaration of rights? a. If yes, was the bill of rights included as a part of the original constitution, was it added later, or is it a separate document, and why? 2. Does the federal constitution incorporate international human-rights covenants and conventions? a. If yes, can those international human rights be enforced against the federal government, constituent governments, local governments, and/or indigenous governments? b. If no, can courts in the federation enforce those rights anyway? 3. What kinds of individual rights, if any, does the federal constitution guarantee? Please categorize (e.g., negative and positive rights, liberties from government and rights guarantees by government, property rights, right of contract) and give leading examples. 4. Are individual rights guaranteed against the federal government, the constituent governments, and/or private abridgment as well? a. How are individual rights enforced and protected constitutionally? b. Are there any federal/national constitutional provisions for the suspension of some or all individual rights? c. If yes, what is the mechanism for suspending rights, and has it ever been used by the federal and/or constituent governments? 5. Does the federal constitution guarantee positive rights (e.g., rights to housing, education, health care)? a. If yes, how are these positive rights enforced constitutionally? b. Are there any federal/national constitutional provisions for the suspension of some or all positive rights? c. If yes, what is the mechanism for suspending positive rights, and has it ever been

13 13 used by the federal and/or constituent governments? 6. What kinds of group or communal rights, if any, does the federal constitution guarantee? Please categorize (e.g., negative and positive rights, liberties from government, rights guarantees by government, linguistic, religious, cultural) and give leading examples. a. How are group/communal rights enforced and protected constitutionally? b. Are there any federal/national constitutional provisions for the suspension of some or all group/communal rights? c. If yes, what is the mechanism for suspending rights, and has it ever been used by the federal and/or constituent governments? 7. Can constituent governments, individually or collectively, opt out of any or all provisions of the federal/national bill or declaration of rights? 8. Do federal and/or constituent government constitutional rights protections apply only to citizens, or do they also apply to guest workers, resident non-citizens, and tourists? B. Constituent governments' guarantees of rights 1. Do the constitutions, if any, of the constituent polities include bills of rights? 2. How do the rights protected by the constituent governments' bills of rights resemble and/or differ from those protected by the federal bill of rights? a. Can the constituent governments provide more or higher rights protections for their citizens than those rights levels recognized by the federal constitution or government? b. Can the constituent governments provide rights protections to their citizens that are not provided by the federal constitution or government? c. Can the constituent governments provide fewer or lower rights protections for their citizens than those rights levels recognized by the federal constitution or government? 3. Do the constitutions of the constituent polities incorporate international human-rights covenants and conventions? 4. How are the rights protected by the constituent governments' bills of rights enforced, and by what institutions? 5. How important have these the bills of rights of the constituent polities been in practice? IX. Constitutional Change A. What are the constitutional provisions for amending the federal constitution? B. What are the roles of the federal government, of the constituent governments, and/or the people in amending the federal constitution? C. Are any provisions in the federal constitution immune or exempted from amendment? D. Generally, does constitutional change occur most often by amendment or most often by judicial, legislative, and/or executive interpretation of the federal constitution?

14 14 E. How many amendments have been added to the current constitution? F. Has the rate of amendment increased or decreased in recent years? Is the rate likely to increase or decrease in the future? G. Do recent amendments reflect a trend intended to modernize the constitution, respond to certain overriding developments or problems, or take the country in a new direction?